Mundine v Brown (No 6) - [2010] NSWSC 1285

No judgment structure available for this case.

CITATION: Mundine v Brown (No 6) [2010] NSWSC 1285

HEARING DATE(S): 10 May - 1 June 2010, 6 August 2010

JUDGMENT DATE :
5 November 2010

JUDGMENT OF: Harrison J

DECISION: 1. Verdict for the plaintiff for $60,000.
2. I will hear the parties on the question of costs.
3. Direct that the exhibits be returned after 28 days.

CATCHWORDS: DEFAMATION – defence of common law qualified privilege – where matter complained of published in newspaper circulating in Clarence Valley – where plaintiff not named in article – whether publication to entire readership of paper or only those persons who identified the plaintiff from extrinsic facts – held publication to all recipients – defence of qualified privilege rejected – DAMAGES – hurt to feelings and loss of reputation – plaintiff employed as Aboriginal mental health worker – defamatory imputation that she was incompetent as such – where plaintiff the only Aboriginal mental health worker in Clarence Valley – defamation substantial – plaintiff awarded $60,000 – no aggravated damages

LEGISLATION CITED: Defamation Act 2005

CATEGORY: Principal judgment

CASES CITED: Aktas v Westpac Banking Corporation Limited [2010] HCA 25
Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510
Bashford v Information Australia Pty Ltd [2004] HCA 5; (2004) 218 CLR 366
Bennette v Cohen [2009] NSWCA 60
Carson v John Fairfax and Sons Ltd [1993] HCA 31; (1993) 178 CLR 44
Cassell & Co Ltd v Broome [1972] AC 1027
Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176
Goyan v Motyka [2008] NSWCA 28
Herald & Weekly Times Ltd v McGregor [1928] HCA 36; (1928) 41 CLR 254
Howe & McColough v Lees [1910] HCA 67; (1910) 11 CLR 361
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Megna v Marshall [2010] NSWSC 686
Moit v Bristow [2005] NSWCA 322
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749
Mundine v Brown [2010] NSWSC 468
Mundine v Brown (No 2) [2010] NSWSC 514
Mundine v Brown (No 3) [2010] NSWSC 515
Mundine v Brown (No 4) [2010] NSWSC 516
Mundine v Brown (No 5) [2010] NSWSC 517
Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327
Smith's Newspapers Ltd v Becker [1932] HCA 39; (1932) 47 CLR 279
State of New South Wales v Riley [2003] NSWCA 208; (2002-2003) 57 NSWLR 496
Stephens v West Australian Newspapers [1994] HCA 45; (1994) 182 CLR 211
Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497

PARTIES: Lana Mundine (Plaintiff)
Avery Brown (First Defendant)
APN News and Media Limited (Second Defendant)
Daily Examiner Pty Ltd (Third Defendant)

FILE NUMBER(S): SC 2009/296431

COUNSEL: T Molomby SC with R K M Rasmussen (Plaintiff)
P M Sibtain (First Defendant)
A T S Dawson (Second and Third Defendants)

SOLICITORS: Slater & Gordon (Plaintiff)
Holding Redlich (First Defendant)
Banki Haddock Fiora (Second and Third Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

HARRISON J

5 November 2010

2009/297431 Lana Mundine v Avery Brown, APN News and Media Limited and Daily Examiner Pty Ltd (No 6)
JUDGMENT

1 HIS HONOUR: Lana Mundine alleges that an article "Aboriginal services nowhere to be seen", published in the Daily Examiner on 18 August 2008, defamed her. After a hearing lasting 17 days, the jury found that Ms Mundine had proved on the balance of probabilities that she was sufficiently identified by the article even though she was not named in it. The jury also found that she had proved on the balance of probabilities that the article conveyed two meanings to an ordinary reasonable reader. First, that Ms Mundine was incompetent as a mental health worker, and secondly that she was not properly accredited for her job as such when compared to mainstream mental health service providers. Of those two meanings, the jury found only the first to be defamatory of Ms Mundine.

2 The jury subsequently found that the defendants had established on the balance of probabilities that the article would have been understood by the ordinary reasonable reader as an expression of opinion rather than a statement of fact. However, the jury found that the opinion expressed in the article was not properly based on any of the matters that they had determined were substantially true facts when the article was published. Finally, the jury found that the first defendant was not motivated by malice towards Ms Mundine in publishing the article. The issue of whether or not the privilege attaches to the particular publication therefore arises for consideration.

3 As a result of the jury's decisions, the only remaining issues for determination are whether or not the defendants published the matter complained of on an occasion of qualified privilege and the assessment of damages. These reasons are limited to a consideration of those issues.

4 Some aspects of the dispute in these proceedings have already been considered by me: see, for example, Mundine v Brown [2010] NSWSC 468, Mundine v Brown (No 2) [2010] NSWSC 514, Mundine v Brown (No 3) [2010] NSWSC 515, Mundine v Brown (No 4) [2010] NSWSC 516 and Mundine v Brown (No 5) [2010] NSWSC 517. A familiarity with what is discussed in those decisions may assist in the appreciation and understanding of these reasons for judgment.

Background

5 Ms Mundine was born in the Clarence Valley area in northeastern New South Wales. She grew up in Baryulgil, an Aboriginal community outside Grafton. Ms Mundine is a female mental health worker with the Aboriginal Medical Service. She started working in that job in July 2001. The Aboriginal Medical Service employs about 30 people in Grafton providing a wide range of medical services to the Aboriginal community in the Clarence Valley. The job that she took up in 2001 was a new position so that she was the first person to do it.

6 Ms Mundine has a Diploma in Mental Health from the Rozelle Psychiatric Education Unit at the Rozelle Hospital and an Advanced Diploma in Health Science (Aboriginal Mental Health). Ms Mundine has other qualifications as well.

7 On the morning of 18 August 2008 Ms Mundine went down to the newsagent as she normally did and purchased the Daily Examiner. The article appeared prominently on the front page of the paper, together with a large picture of Mr Brown. It was in these terms:

"ABORIGINAL SERVICES NOWHERE TO BE SEEN

Leading Aboriginal affairs advocate Avery Brown has watched on in frustration during the past two years as more and more Aboriginals have been paraded before district courts. Disappointed and upset with the inadequacies in Aboriginal services, he is now speaking out in the hope of a better tomorrow for his people. He pulls no punches in his comments about how local Aboriginal services are failing to meet their obligations . . .

We do not need to visit the Northern Territory to comprehend the quality of life that remote Aboriginal communities endure. We only need to look in our own backyards.

Last week I attended a forum in Grafton to discuss the issues of domestic violence and mental health. As a field officer with the Aboriginal Legal Service, these issues frequently affect my clients.

I was sorely disappointed in the forum. It was organized by the Grafton Domestic Violence Committee so Aboriginal service providers could meet and discuss their concerns.

But unfortunately, many of the services did not attend, even though they were told about it months in advance.

I am now wondering whether they are interested in providing a good service or have just grown complacent.

We have a mental health crisis in the Clarence Valley and the truth is that mental illness – including alcohol and drug abuse – leads to crime, it leads to violence and it leads to poverty.

It has played a large part in the Aboriginal community becoming over-represented in the courts.

The Aboriginal Legal Service is under immense pressure from the justice system to provide an alternative to gaol, as it realises the extent of mental illness in our community and its link to domestic violence.

Although it is a big problem here, visibility from the Aboriginal services dealing with these issues is almost non-existent. There is a growing perception that service workers are hiding behind their desks.

I have on many occasions tried desperately to engage mental health intervention in extreme circumstances, but to no avail.

I hoped this forum would provide me with resources available to assist my clients. I was wrong.

I am sick and tired of being directed to use Aboriginal workers attached to mental health and domestic violence services and not getting the information or assistance I need.

Although I value Aboriginal-specific services, if being referred means my clients get a second-rate service, then I would rather use mainstream services.

I do not believe the support workers in the Aboriginal sector are appropriately accredited when compared with mainstream service providers.

As a result, the Aboriginal community is receiving below-standard level care.

At the moment there seems to be no performance review of workers and services, both in Aboriginal and mainstream providers.

What is clear is that Aboriginal services need to get out of their offices and into the community, especially in remote areas such as Baryulgil and Malabugilmah.

The disappointing part is that the services could make a huge difference in the community and in countless families if they did their jobs properly.

Today I am no closer in being able to access the services my clients need.

And they do need it.

8 After buying the newspaper, Ms Mundine just sat in her car and read it. She immediately felt upset, distressed, very emotional and angry. She said that she could see that the article was aimed at her and was a very public attack upon her. She went home and spoke to her daughter Natalie about it. She then proceeded on to work. She took the paper with her. She was met by workmates and spoke to them. Some of them had already read the article.

Qualified privilege – a preliminary issue

9 Ms Mundine was not named in the article. However, the jury answered the following two questions in the affirmative:

1. Has the plaintiff, Lana Mundine, proved on the balance of probabilities that at least one person who read the article "Aboriginal services nowhere to be seen" on the front page and page 5 of the Daily Examiner of 18 August 2008 identified her as a person referred to in that article?

10 This gives rise to a preliminary issue in the following way. Ms Mundine submitted that because the publication was in a newspaper, with a wide circulation, dissemination to the public at large was in effect to be presumed, and that respectable authority supported this. Accordingly, she contended that the defendants must defend publication of the defamatory imputation to the entire readership of the paper, not just to those who identified her. The defendants' response was that they only needed to establish the defence of qualified privilege in relation to a smaller group or class of readers that actually identified Ms Mundine. As it was unlikely, according to the defendants, that Ms Mundine, as an unnamed plaintiff, would be identified beyond a quite small and limited number of readers, that meant the defence of qualified privilege remained alive for determination, and that only the readers who actually identified Ms Mundine were to be considered as the relevant recipients for that purpose. The defendants submitted that publication to incidental recipients was also protected.

11 Ms Mundine submitted that in this case the matter complained of was published to the whole 11,948 readers of the newspaper, so the fact that she was not named makes no difference for the purposes of a defence of qualified privilege. She contended that in light of the answers of the jury on the question of identification, the case stood to be assessed on exactly the same basis as if she had actually been named. The defendants both said that they did not intend to refer to Ms Mundine. Whether or not they had her in mind, they could not have known who among their readers had the knowledge that allowed Ms Mundine to be identified. It was thus an indiscriminate, rather than a selective, publication.

12 Ms Mundine asserted that the group that identified her is larger than the defendants suggest and that their approach to the issue is contradictory. The newspaper said that the people who identified Ms Mundine were either work colleagues or clients or family members of clients. Ms Mundine's sister and Mr Marshall were outside these categories. Ms Mundine suggested that it was "plain" that a considerable range of people would have had the knowledge that would have enabled them to identify her. These included her family and personal friends, her work colleagues in the strict sense of those at the Aboriginal Medical Service and in the extended sense of staff at other institutions with whom she had repeated dealings in her work, such as the gaol, Grafton Hospital and the juvenile justice centre. Also included would be clients and families at the Aboriginal Medical Service and other institutions and people in trade and business with whom Ms Mundine had regular contact. These people were said to be beyond the scope of the reciprocity of duty or interest that was essential for the establishment of the defence of qualified privilege.

13 Mr Brown emphasised in contrast that as Ms Mundine was not named, the (relevant) recipients could only have been those who understood that she was a mental health worker in the Clarence Valley. That was therefore said necessarily to be limited to patients, carers and co-workers. These people had a legitimate interest in receiving the information on the competence of the service and, by inference, of Ms Mundine.

14 The newspaper re-emphasised the extent of the publication. It contended that even though the matter complained of was published in the newspaper having an estimated readership at the time of 10,908 in the Clarence River District of New South Wales and 11,948 in New South Wales generally, the relevant publication in these proceedings for the purposes of the defence of qualified privilege was not to the entire readership but to a smaller specific group of identified or identifiable people. That is said to be because Ms Mundine was not named in the matter complained of with the alleged result that it was only published to persons who had knowledge of certain extrinsic facts about her. Those facts were said to be that Ms Mundine was employed by the Bulgarr Ngaru Medical Service based in Grafton as a mental health worker and that she was the only Aboriginal mental health worker so employed.

15 Ms Mundine's evidence was that fourteen people had identified her as the person referred to in the matter complained of. They were Mr Monaghan Mr Wooldridge, Professor Jackson, Ms Scott, Ms Fairweather, Ms Kildove, Mr Ferguson, Mr Daily, Mr Bell, Ms Patricia Mundine, Mr Marshall, Ms Trindall, Ms Laurie and Mr Herron. Apart from Patricia Mundine, these people are work colleagues, clients or their family.

16 The newspaper submitted that the only other evidence relied upon by the plaintiff to establish inferential identification and therefore publication beyond these 14 identified people was as follows. First, evidence of Ms Mundine's activities in the community in her role as an Aboriginal mental health worker, such as the documentary material in Exhibit "F", from which it might be inferred that people knew her from those activities and would have understood the article to refer to her. Secondly, the article in The Koori Mail, which named Ms Mundine as "Aboriginal Mental Health Worker Lana Mundine from Baryugil, who works at Bulgarr Ngaru Medical Aboriginal Corporation". In each case it is to be assumed that people in these groups also read the matter complained of on 18 August 2008.

17 The newspaper contended that the direct evidence, and any inference available from the Exhibit "F" material as to identification, established that the people who identified Ms Mundine by their knowledge of the extrinsic facts she relied upon, knew her because of her position and because they were either work colleagues or people who were clients or their family. In other words, according to this submission, there was no evidence either directly or indirectly, of any person outside this group identifying Ms Mundine from the matter complained of. It is said therefore to follow that the only people to whom the matter was published is a group of people who knew Ms Mundine in her role as a mental health worker and who knew her in a professional context. The newspaper submitted that it was this limited ambit of publication, which is relevant to the determination of the availability of the defence of qualified privilege at common law.

18 To the extent that there are other people to whom it might be inferred that publication occurred, it must also be inferred that those people knew Ms Mundine in her role as an Aboriginal mental health worker and in a professional context. This was said to be because of the nature of the extrinsic facts by which Ms Mundine said those people identified her. In other words, the particulars of identification make it clear that the only people who were able to identify her were those who knew of Ms Mundine's position and role with the Bulgarr Ngaru Medical Service.

19 The newspaper submitted that if, or to the extent that, there were a limited number of people outside this group, about which it was submitted the evidence was inconclusive, they would be few in number and properly regarded as incidental recipients rather than as altering the makeup or nature of the recipients shown to have the requisite interest: Stephens v West Australian Newspapers [1994] HCA 45; (1994) 182 CLR 211 at 263; Megna v Marshall [2010] NSWSC 686 at [183].

Consideration of the preliminary issue

20 The application of the defence of qualified privilege at common law to publication to an unrestricted audience via newspapers was reviewed by the Court of Appeal in Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 772 to 792. A central aspect of that review was the distinction between publications to a limited audience and publication to the world at large. The Court said this at 778:

"It is apparent from these decisions and dicta that, at common law, a publication in a newspaper is not the subject of qualified privilege merely because it gives the public information concerning a matter in respect of which the public is interested. Something more is needed which is said in some circumstances to constitute a duty, and in other circumstances an interest, on the part of the newspaper to communicate the information."

21 The Court continued and concluded as follows at 792:

"We do not think that there is any need to adapt the law of privilege, so that it will extend to publications of kinds we have been considering. Newspapers play an important role in our society, but that role does not call for an unrestricted licence to defame people, simply because it can be shown that the defamatory material was part of an article or other form of publication on a matter of public interest, and that the publication was not malicious. Defamatory publications on matters of public interest are protected under the common law, and by statute, in various ways, but something more than mere public interest is required. It may be truth; or it may be reasonableness, in all the circumstances, of the conduct of the publisher in making the publication; or it may be some other requirement. To establish its claim of privilege the appellant must satisfy us that it has a duty or interest to publish the articles and the cartoon. We can see no occasion to establish or to recognise such a duty or interest. We do not consider that the appellant was entitled to rely upon common law qualified privilege in respect of any of the publications."

22 In a similar vein the High Court said this in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 570 - 572:

"Only in exceptional cases has the common law recognised an interest or duty to publish defamatory matter to the general public…

*****

If a publication is made to a large audience, a claim of qualified privilege at common law is rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth

Publication beyond what was reasonably sufficient for the occasion of qualified privilege is unprotected

But a test devised for situations where usually only one person receives the publication is unlikely to be appropriate when the publication is to tens of thousands, or more, of readers, listeners or viewers

23 In Aktas v Westpac Banking Corporation Limited [2010] HCA 25, French CJ, Gummow and Hayne JJ observed at [14] that:

The requirement of reciprocity of interest generally denies the common law privilege where the matter has been disseminated to the public at large

24 The burden of the defendants' submissions, for which I was informed there was no authority "directly on point", was that the class of persons to whom the defamatory imputation was actually published was co-extensive with the persons who had identified the plaintiff, or who might reasonably be presumed to have done so. This class was necessarily small or limited because Ms Mundine was not named in the article and only those with some inside knowledge or understanding of the subject matter of the article would have been able to relate the matter complained of to her. This argument was a precursor to a submission that the requirement of reciprocity of interest remained alive for consideration in the context of a defence of qualified privilege because there had not actually been dissemination to the public at large.

25 As will be apparent from the way in which the defendants have approached this argument, they are confronted with the task of identifying a group or class of people to whom the imputation was published within the broader class of the total readership of the newspaper. Some of these people are identified by name. Some of them are unknown but are identified by category, such as health care professionals, co-workers and the like. It is implicit in the way in which the defendants put their argument that, with the exception of some possibly incidental recipients, there are no other people outside this limited group or class of people to whom the imputation was published. They contend that the extrinsic facts capable of being used to identify Ms Mundine as a subject of the article could only have been known by those people with a sufficient knowledge of the subject matter of the article. They are all members of this limited group or class. They were also the people, so this argument runs, who fell within a group or class of people to whom publication of the defamatory imputation might still attract the defence of qualified privilege at common law.

26 The argument is superficially attractive. However it is to a considerable extent both circular and self-serving. It proceeds upon the assumed basis that only those people with an interest in or understanding of the provision of Aboriginal mental health services in the Clarence Valley would have identified Lana Mundine as an Aboriginal mental health worker. The argument seeks in effect to draw upon the proposition that Ms Mundine was unidentifiable or unknown beyond the range of people who knew her professionally or who were in some close and informed relationship to such people. That is a proposition that the defendants must prove on the balance of probabilities. I do not consider that they have done so. I do not consider that they could do so.

27 Ms Mundine purchased her newspaper on 18 August 2008 from the newsagent or outlet as she regularly did. I have no way of knowing on the state of the evidence whether the person with whom she dealt on those occasions knew her as an Aboriginal mental health worker in the local area. The same could be said for the teller at her bank or the mechanic who serviced her car. It is probable that Ms Mundine had friends and relatives who also knew that she worked for the Aboriginal Medical Service as a mental health worker. Such people may have been large or small in number. The evidence does not permit me to say.

28 For presently relevant purposes it seems to me that the defendants would have to prove that there were no such people, beyond the limited group or class described, to whom their defamatory imputation was published in the way they suggest. They understandably did not attempt to do so by direct evidence, preferring instead to rely upon the availability of an inference that there were no such people. I am not satisfied that such an inference is available.

29 In my opinion, the defendants published the matter complained of and the defamatory imputation that Ms Mundine as a mental health worker is incompetent to the whole of its readership. The matter was disseminated to the public at large. Any assessment of whether or not the defendants can maintain the defence of common law qualified privilege must be assessed in that context.

Ms Mundine's submissions on qualified privilege

30 Ms Mundine contended that the general principles are not controversial. Having regard to the thorough and detailed analysis of this area of the law by her Honour Simpson J in Megna v Marshall at [49] – [174], I am not currently prepared to accept that statement without reservation.

31 In Bashford v Information Australia Pty Ltd [2004] HCA 5; (2004) 218 CLR 366 at [9] and [10] Gleeson CJ, Hayne and Heydon JJ said this:

Toogood v Spyring

Reciprocity of duty or interest is essential.

32 In Bennette v Cohen [2009] NSWCA 60 Ipp JA said this at [6] – [10]:

"[6] The very high level of abstraction and generality apparent in the Toogood v Spyring test is manifest in many subsequent statements seeking to set out the requirements of common law qualified principle. I shall give two examples.

Roberts v Bass

Bashford

Harrison v Bush

[9] The application of such broad statements of principle is the first step in determining whether an occasion is subject to qualified privilege at common law. The next step is to proceed with the requisite close scrutiny of all the circumstances of the case. Those circumstances will include (as Dixon J states in Guise v Kouvelis (1947) 74 CLR 102 at 116) the situation of the parties, the relations of all concerned and the events leading up to and surrounding the publication. They will also include the matter complained of ( Bashford at [54] per McHugh J).

Toogood v Spyring

Morosi v Mirror Newspapers

Defamation Act

Austin v Mirror Newspapers Limited

33 His Honour later offered the following useful summary of propositions extracted from the authorities at [25] as follows:

Lange

(a) The test for common law qualified privilege is usually expressed at a very high level of generality and abstraction;

(b) In practice, however, the close scrutiny required of all the circumstances of each case results in common law qualified privilege having a relatively limited or narrow practical application;

(c) The scrutiny required depends on the facts of each case and there is no closed set of criteria that must be applied or considered, and;

(i) As a matter of public policy, it must be in the general interest of the whole community that the type of material in question be published, notwithstanding that it is defamatory of a third party;

(ii) The occasion must not be used for some purpose or motive foreign to the interest that protects the making of the statement. Further, there must be a significant connection between the defamatory material and the privileged occasion;

(iii) The interest that gives rise to qualified privilege must be real and direct;

(iv) Ordinarily, a volunteered statement is privileged only where there is a pressing need to protect the interests of the defendant or a third party, or where the defendant has a duty to make the statement;

(v) If a publication is made to a large audience, a claim of qualified privilege at common law will fail unless the members of the audience all have an interest in knowing the truth, and;

34 Ms Mundine also emphasised the fact that in this case the defendants rely on the defence of qualified privilege at common law even though they formally denied that the defamatory matter and the imputation that it conveyed were capable of referring to her or that it was even intended to do so. Ms Mundine submitted that this tended to suggest that the publication of the imputation in the defamatory matter was not pursuant to any duty or interest that either defendant had with respect to readers of the third defendant's newspaper.

35 The defence of qualified privilege at common law is a plea of confession and avoidance. In Bashford at [58] McHugh J said this:

"[58]…A plea that defamatory matter was published on an occasion of qualified privilege is a plea of confession and avoidance. It accepts that the communication is defamatory, that the defamatory matter may be false and that its publication has caused or may cause harm to the plaintiff. It confesses the publication of defamatory matter, but contends that the publication is immune from liability because the public interest requires that the duty and interest of the publisher and recipient should be preferred to the protection of the plaintiff's reputation. The court cannot determine these issues of duty and interest without characterising the subject matter of the defamation. It cannot judge whether the particular duty and interest are so necessary for the proper functioning of society that the occasion should be privileged - despite the harm that the communication may cause - unless it knows what is the nature of the defamatory communication that allegedly gives rise to the duty and interest. A defendant who claims that the occasion was privileged must show that "both the givers and the receivers of the defamatory information had a special and reciprocal interest in its subject matter" such that public policy requires that the defendant be immune from liability for the publication."

36 Gummow J dealt with this issue as follows at [135]:

that imputation

37 Ms Mundine contended that as there was no intention on the part of the defendants to convey any imputations about her, there can be no duty or interest to convey anything about her to anyone, nor can there be any honest belief in the truth of any defamatory statement published by them about her. Each defendant had denied publication in respect of Ms Mundine and in their answers to interrogatories also denied any intention to convey the pleaded imputation about her.

38 Furthermore, the publication in the present case was volunteered. Ms Mundine submitted that that was another factor for consideration in the assessment of whether there was a relationship between the publisher and the recipients that attracted the privilege. For example, in Bennette, Ipp JA said this at [21]:

Bashford

39 To a similar effect, McHugh J in Bashford at [73] said this:

"[73] Different considerations apply when the defendant volunteers defamatory information. Ordinarily the occasion for making a volunteered statement will be privileged only where there is a pressing need to protect the interests of the defendant or a third party or where the defendant has a duty to make the statement to the recipient. The common law has generally perceived no advantage to society in giving qualified privilege to volunteered statements in the absence of a pre-existing reciprocity of interest between the defendant and the recipient. It has taken the view that the reputation of the defamed should be preferred over the freedom to publish volunteered but defamatory statements that may or may not be true. In most cases, a defendant who publishes a defamatory statement that neither protects his or her interests nor answers a request for information will have to rely on some other defence, such as truth or fair comment…"

40 This passage was cited with approval in Goyan v Motyka [2008] NSWCA 28 at [86] per Tobias JA.

Mr Brown's submissions on qualified privilege

41 It was uncontroversially accepted by Mr Brown that in order to succeed on his defence of qualified privilege he was required to show that he published the article on a matter of public interest pursuant to a particular interest or duty and that those to whom the article was in fact published had a reciprocal interest in receiving it. More controversially, he contended that those to whom the article was published were in this case limited to those and only those who identified Ms Mundine, as opposed to the general readership of the paper at large.

42 Mr Brown is a leading Aboriginal affairs advocate, an Aboriginal elder and a co-head claimant in a land rights claim in the area. He had been employed for the previous 17 years as a Field officer with the Aboriginal Legal Service. His duties were to deal with courts and the judicial system. He was also involved in community-based work, gaol visits, attendances at Aboriginal inter-agency meetings and forums and any interaction regarding crime prevention or Aboriginal social issues. As part of his employment he attended gaols and juvenile justice centres in Grafton, Glen Innes, Kempsey, Tamworth and Muswellbrook to service his Aboriginal clients in custody. He contended that he had a duty to speak out on behalf of his clients in particular and his people in general.

43 Mr Brown drew upon what was said in the article itself for what he now submits was the reason for the publication. The article said that he:

"… watched on in frustration during the past two years as more and more Aboriginals have been paraded before district courts. Disappointed and upset with the inadequacies in Aboriginal services, he is now speaking out in the hope of a better tomorrow for his people."

44 Mr Brown also gave the following evidence:

"The purpose of writing the letter to the paper was to inform the community about what was happening in their community or, for want of a better word, what wasn't happening. The chronic alcohol and drug abuse issues, domestic violence, suicides, homelessness, truancies from school, all those issues are not being addressed. We all know they're there, but no-one is prepared to get up and do something about it. And when that client of mine was incarcerated in Queensland on serious charges, I said to myself, I had had enough and it's time that we, as Aboriginal workers in the community, have got to work together to address these issues that we have got. That wasn't happening. And the article in the paper was to try and draw attention to those issues in the community and to also jog those persons, CEOs and managers, to say, you workers need to get out there and you workers need to get together and unite to deal with these issues and problems. It's not happening. It's still not happening."

45 Mr Brown said that he was speaking the truth as he saw it. He said, "What I wrote in the article is exactly what's happened" and "this article was based upon my observations". He also said that he was motivated by what happened at the forum and by the recent poor experience of one of his clients.

46 Mr Brown submitted that the article was written in discharge of his duty to speak out, particularly to those who were in a position to do something about the crisis in the Clarence Valley, namely, those involved in the provision of services. In considering all of the circumstances and asking whether Mr Brown as a publisher had a duty to publish or an interest in publishing this defamatory publication to these recipients, he submitted that the answer was yes.

47 All of the circumstances of the case made it clear that the relevant occasion was one of qualified privilege and clear that what was said was relevant to it. These circumstances included the nature of the defamatory publication, the status or position of the publisher, the number of recipients and the nature of any interest they had in receiving it, as well as the time, place and manner of publication and the reasons for it.

48 Mr Brown submitted that he had a duty and interest to publish the matter complained of in circumstances where he was commenting on legitimate matters of public interest, from personal experience in order to protect the rights of his clients, those with mental illness coming before the courts and being (unnecessarily) incarcerated due to incompetent health treatment. They were said to be clearly matters of public concern to both the publisher and the recipients. Mr Brown submitted that those persons were necessarily those who either had authority over Ms Mundine or who were affected by her actions. The imputation fell within the "umbrella of the applicable privilege" referred to in Bashford and in Aktas at [74]. The comments are thoughtful, considered, articulate and passionate. They are not gratuitous to the occasion.

49 Mr Brown specifically adopted the submissions made on behalf of the newspaper.

The third defendant's submissions on qualified privilege

50 The newspaper adopted the approach to determining the existence of the defence of qualified privilege identified by Simpson J in Megnav Marshall at [175] – see below. It did not in any respects apart from what I have called the preliminary issue depart from the statements of general principles for which Ms Mundine contended. The newspaper's submissions on the defence of qualified privilege are referred to more fully below within the context of the useful Megna v Marshall framework that it identified.

Consideration

51 In Megna v Marshall at [50] and [175], Simpson J summarised what she called "the proper process for determining a defence of qualified privilege" as follows:

"[50] I have come to the conclusion that the determination of a defence of qualified privilege at common law involves three strands of inquiry:

● identification of an occasion of qualified privilege by reference to all of the circumstances in which the communication is published, including, particularly, the subject matter of the communication: this involves the identification of a duty or interest in the publisher to communicate with respect to that subject matter, and the identification of a reciprocal interest in the recipient in receiving a communication with respect to that subject matter;

● determination whether the content of the communication was relevant , germane , or sufficiently connected to that occasion or subject matter;

● (only if both occasion and relevance are established), determination whether, notwithstanding that there is an occasion of qualified privilege, and that the communication is sufficiently relevant or germane to that occasion, the occasion was misused, or used for an ulterior or extraneous purpose, such as to give rise to a finding that the publisher was actuated by express malice .

*****

[175] Notwithstanding some inconsistencies in the cases, in my opinion the preponderance of authority is that the proper process for determining a defence of qualified privilege is to ask a series of questions, in sequence, as follows:

● were the circumstances ( Moit , Baird ) in which the communication was published (including, importantly, the subject matter of the communication and the identity of the publisher and the recipients) such as to give rise to the requisite duty or interest in the publisher, and the reciprocal interest in the recipient in receiving the publication, thus creating an occasion of qualified privilege?

● if the answer to the first question is in the affirmative, was the particular statement of which complaint is made sufficiently relevant ( Adam v Ward , Braddock v Bevins , Mowlds v Fergusson , Bellino ; contra Horrocks v Lowe ) germane ( Adam v Ward ) or did it have sufficient connection ( Bashford ) to that occasion?

(If the answer to either of the preceding questions is in the negative, then there is no call to proceed further. There is no defence of qualified privilege.)

● if the answer to both preceding questions is in the affirmative, was the publisher actuated by express malice?

For the purpose of the first question, the recipients are residents and ratepayers of the Drummoyne municipality.

Answering the first question involves:

● identifying the subject matter of the “communication” (here, I think, attention must be directed to the particular item of each circular from which the defamatory imputation emerges. That is, each item the subject of complaint must be treated as a separate publication.); the inquiry is to be directed not specifically to the individual imputation or statement, but to statements of that genre – see Andreyevich v Kosovich ; Bennette v Cohen , per Campbell JA, at [207].

● identifying the duty or interest of the defendants in providing information to the recipients on that subject matter;

● identifying the reciprocal interest in the recipients in receiving information on that subject matter;

52 I shall adopt her Honour's framework in considering the issue of qualified privilege.

The first question

"The circumstances in which the communication was published"

53 Her Honour's first question encompasses what has been referred to as the need for close scrutiny of all the circumstances of the case. At [22] in Aktas, the majority repeated the well-known remarks of Dixon J in the following context:

Justin v Associated Newspapers Ltd

.

Guise v Kouvelis

54 To like effect are the remarks of McColl JA in Moit v Bristow [2005] NSWCA 322 at [78] – [79] as follows:

"[78] In order to determine whether a publication was made on an occasion of qualified privilege, the court examines all the circumstances of the case. These include the nature of the defamatory communication, the status or position of the publisher, the number of recipients and the nature of any interest they had in receiving it, and the time, place and manner of, and reason for, the publication. After considering these matters, the court makes a judgment as to whether the publisher had a duty or interest that justified making the publication and whether the recipients, or some of them, had a duty to receive or interest in receiving it: Bashford per McHugh J at [54]; see also Gleeson CJ, Hayne and Heydon JJ at [10]; Gummow J at [139]; Callinan J at [235].

Andreyevich v Kosovich

Bashford

55 Mr Brown emphasised that the article was published in circumstances where 90 per cent of his clients, being inmates in custody, were incarcerated because of alcohol or substance abuse problems. Some of the problems related to domestic violence issues and others involved issues of mental health. He gave this evidence:

"Q. Just concentrate now on your role as prison support. Did you come to have contact with any clients that seemed at least to you to be suffering either drug or an alcohol related or mental health issue?
A. While I was with the prison support unit?

56 Mr Brown also said that about 99 per cent of his clients going through the judicial system and being incarcerated had a mental illness, a drug or alcohol abuse issue or all three. There had also been a number of unsatisfactory health outcomes for Mr Brown's clients, one of which had been only a week before the forum. Mr Brown's evidence about this, which I accept, was as follows:

"WITNESS: … Well, firstly, there was a woman who had chronic alcohol abuse problems. I got in touch with Michelle Bare from the AMS who was the drug and alcohol worker at the time. I worked with Michelle maybe three or four weeks with this client and then it was obvious to us through things that this woman had said to both Michelle and myself that there were other problems relating to the way she was. She talked about doing away with herself. She talked about not wanting to live. I think on one occasion she tried to cut her wrists. I said to Michelle: Michelle this is an issue that we need to look into. Michelle then said to me that she would take it up with the relevant persons. I'm not too sure who she meant.

Q. So far as you were aware, was any follow up at least so far as you knew taken with respect to those mental health issues?
A. None whatsoever. I spoke to this person on three occasions at Court and once she was in Grafton gaol I went to see her in the gaol and she expressed to me that she had no contact with any support services whatsoever and about five months ago I think it was, I spoke to that person again who was since released from prison and she still said to me no-one bothered to help her at all.

Q. You were going through examples of those?
A. Another young person, a male who presented to the ALS office in Grafton in the morning. He began kicking the wall, talking in a language that I couldn't understand, raising his hands into the air, looking up to the sky, punching windows and, you know, after I calmed him down, I removed him from our office and we went up to the Courthouse because he had to appear in Court that day and unfortunately to conduct his own defence.

When we got to the Courthouse this young person again has another episode where he was standing in the middle of the road, raising his hands in the air, looking up to the sky and chanting some sort of language. I didn't have any idea what he was on about. It was then that I rang the AMS. I spoke to Trevor Kapeen. I said to Trevor, I said: "Trevor, I've got a young guy down here at the Courthouse who's having an episode. Can you send someone down to help." Trevor said to me, he said: "Brother, I'll have someone there in five minutes." Five minutes elapsed, no-one's turned up. Never heard from Trevor again that day so I rang the Grafton Base Hospital, spoke to someone at the hospital, another male person who said: "There will be someone down there in five minutes." No-one turned up and I got no call from the hospital as to why or what was going on.

Q. What happened to that person that day?
A. I then said to this young person: "If you would just wait in the Court, I will go and speak to the Magistrate. I spoke to the Magistrate in his chambers and I said: "Mr Pogson this young gentleman has got mental health issues." Mr Pogson said to me: "Mr Brown", he said: "Have you got any documents to state that fact?" I said: "No, I don't." So he said: "Well, unfortunately, he will have to conduct his own defence and then I will make the assessment from the Bench."

I tried my best to explain to the young person that this is what he needed to do. He proceeded to do that, to conduct his own defence. Mr Pogson observed for a while and then he called a halt to the proceedings and adjourned the matter and that young gentleman walked out of there thinking he had won the case, jumping in the air and shouting out aloud that he had beaten the police and I tried to explain to him that the matter was only adjourned. Now, he left the Courthouse. I have not seen him since but I haven't - I have it on reliable authority that he was incarcerated in Queensland and now faces very serious charges.

Q. You were in Court, were you not, when some evidence was given about a call that you made to the AMS about a person that was actually in custody. Do you remember that evidence being given?
A. I do.

Q. What do you say about that?
A. The person that was referred to in that evidence was never in a police cell on that day or in Corrections custody.

*****

Q. In the context of ringing from the Courthouse and asking somebody to come down, have you had ever had a conversation with anybody from the AMS asking somebody from the AMS to come and see somebody in custody?
A. Not on that day, no.

Q. Have you had any conversations with Trevor Kapeen or anybody else about being told that because of some limit or red flag or the fact that they are on file or whatever it might be that they would not come?
A. No.

Q. Now, I interrupted you. You have told us a couple of examples of trying to get some assistance for seemingly mentally ill clients?
A. Two others that I could relate to in that period. One was a young guy, sorry, a young male who has been diagnosed with mental health problems. He used to seek me out either at the office, in the street, at Court or where ever he sees me to ascertain from me just where his case is up to in the Court and the unfortunate thing is he doesn't have any pending Court cases. He enquires about where all his millions of dollars are. He doesn't have millions of dollars. He enquiries about the state of his two huge apartment blocks on the Gold Coast. He doesn't have two apartment blocks on the Gold Coast. I rang and spoke to Scott Monaghan at the AMS and Scott told me he said: Avery, we can't do nothing for him. He's banned from the AMS because of threats made to certain staff members." That young guy is still walking the streets today.

57 The forum was the Grafton Forum on Aboriginal Services for Domestic Violence. Mr Brown described the forum and its work:

"Q. I want to ask you now about the Grafton forum. (Witness shown Exhibit G) Firstly, can you tell the jury your understanding of how long you had been involved with the Grafton Domestic Violence Committee and what it is that you understand that Committee to do?
A. I became involved with the Domestic Violence Committee in late 2006 early 2007. The Domestic Violence Committee is a Committee that holds meetings to discuss issues within the community. Then every second month we have a forum to work out solutions to those issues that have been discussed at the meetings prior so for instance on January - sorry, in January we would have a meeting. In February would be a forum.

58 Ms Mundine's male counterpart had left the Aboriginal Medical Service in early 2008. Even though there was funding for him to do so, he never went to the gaol. After he left he was never replaced. There has therefore been no male mental health worker since that time.

59 The only person with whom Mr Brown had any real contact at the Aboriginal Medical Service was Michelle Fairweather. She was the drug and alcohol worker. The service did not have a psychiatrist, a psychologist or a mental health nurse, all of which were needed. The UNSW Independent Report recorded that there were no clinical supervision arrangements, and only limited mental health policies and procedures, in place. It found that there were only limited partnerships and working relationships between the Aboriginal Medical Service and the mainstream services, which was necessary to provide proper quality services. If there were serious mental health issues, it was the mainstream provider who needed to be called in.

60 As to whether "many Aboriginal community members were at risk", Ms Mundine herself conceded that the article and the UNSW report "seemed to be saying the same thing" and to be talking about the same issues. The service provided by the Aboriginal Medical Service was a basic level of care and really only a bare referral service. The Aboriginal Medical Service was severely under-resourced, there were gaps in the service it provided, and the staff was under-qualified. The report identified other deficiencies as well.

61 Mr Steven Cansdell, the local Member of Parliament for the seat of Clarence, twice tried to get assistance for the Yamba community but was twice told to mind his own business. He gave this evidence:

" Q. Can you describe what the Yamba community was like in August 2008?
A. Well I can't specifically say August 2008, but I can say nothing seems to have changed over the last four or five years and I've been aware of that there are families, many families dysfunctional, there is very little elder leadership in that community, there is a high range of alcoholism, domestic violence and youth crime as well. And I know that much of this, in my opinion, because of the alcohol and the dysfunctional families, that this affects the mental health of the youth that do get involved in crime and I suppose just lost. Around that time also I was approached by Magistrate Kim Pogson from Grafton who called a meeting in his office where myself, some other community Aboriginal agencies were there . . .

*****

Q. Can you tell the jury what were the topics of discussion at that meeting held by the Magistrate?
A. The topics were the high numbers of juvenile presentations to court, and many of those from the Yamba community, the fact also that parents were not turning up to court with the children. In fact the Magistrate said that programs - sorry, it was mentioned at the meeting that programs should be put together to bring a more family orientated - and also he said that if things didn't improve,
if parents didn't turn up, then he would put court orders out to insist for the parents to turn up, otherwise the children weren't going to be judged or tried.

*****

Q. Up until August 2008 had you had any conversations with Mr Brown about the representation of his clients in the courts?
A. I've had, I'm sure we had possibly two meetings where he came to my office to basically just entire frustration with the fact that there's a high representation of indigenous kids coming to court and that there wasn't the programs out there or the support that those families needed. It was just total frustration to talk to me.

62 Mr Brown submitted, and I accept, that all of this and other similar evidence revealed a mental health crisis in the Aboriginal community in the Clarence Valley, and that the article was published in those circumstances.

"The subject matter of the communication"

63 According to the defendants, the subject matter of the matter complained of was the perceived inadequacies in the delivery of medical and associated services to the Aboriginal community in the Clarence Valley. Identification of the subject matter of the matter complained of in general terms would seem to be appropriate. For example, in Bashford it was sufficient for the majority to identify it as occupational health and safety. In this case Ms Mundine's complaint is about the whole of the matter complained of. The inquiry is therefore to be directed to the whole of the matter complained of and to statements of that "genre".

64 Ms Mundine suggested that the subject matter was actually very different. She contended that while the article covers the territory of the perceived inadequacies in the delivery of medical and associated services to the Aboriginal community in the Clarence Valley, it was really about Aboriginal services themselves that were failing the Aboriginal community, and that they needed to "get out of their offices and into the community". The real subject matter of the article was said to be that Aboriginal services in the Clarence Valley are letting down their own community. An article based upon the conclusions of the UNSW report would be a fundamentally different article to the matter complained of. There is no reference in the article to the several other causes contributing to the inadequacies identified in that report.

65 I do not consider that there is a material difference between the two characterisations of the subject matter of the article. I have some difficulty identifying a relevant or material difference between an article that is said to be about the perceived inadequacies in the delivery of medical and associated services to the Aboriginal community in the Clarence Valley on the one hand and one that is said to be about Aboriginal services in the Clarence Valley that were letting down their own community. As far as I can determine the latter is a sub-set of the former, but the subject matter of the article extends to both. I consider that it is sufficient to identify the subject matter as the inadequacies in Aboriginal service delivery to Aboriginals in the Clarence Valley region.

"The duty or interest of the defendants"

66 The defendants submitted that, given the subject matter of the article, and bearing in mind the remarks of Smithers J referred to below, the subject matter of the publication in these proceedings could be regarded as sufficient on its own to establish the defendants' interest in communicating information on that subject matter. As Simpson J said in Megna v Marshall at [176]:

"Reciprocity in this case will depend principally upon the content of the particular item under consideration – that is, upon the subject matter."

67 The defendants emphasised that the circumstances of the publication were significant in determining the newspaper's duty and/or interest. Mr Brown, himself an Aboriginal person involved in Aboriginal service in the Clarence Valley region, described how he came to write what became the matter complained of. He said:

Daily Examiner

68 The defendants submitted that this evidence, taken with the fact that the newspaper believed that Mr Brown wished to publish the matter complained of, established a reason for the publication: Mr Brown wished to speak out about his concerns for the availability and quality of services for Aboriginal people. That was said to give rise to the newspaper's duty to publish.

69 The defendants also submitted that in the circumstances of the publication of the matter complained of, the publisher of the main local newspaper in the Clarence Valley had an interest in publishing it, if not a duty to do so. This was said to be so in particular because there was a mental health crisis in the Clarence Valley so that the newspaper had a duty or an interest to publish information "about the inadequacies in Aboriginal service delivery to Aboriginals in the Clarence Valley region, and in particular to publish that information to people who were directly involved or affected by the provision of those services". The submission continued to assert that "[t]hose people, and that category of person … were precisely the people (and the category of person) who identified the plaintiff, that is, the people who knew her professionally". The newspaper went so far as to submit that it had a moral or social duty, or at the very least an interest, to publish, "that cannot seriously be disputed".

70 The newspaper made the following submission:

ABC v O'Neill

71 However, this is to be understood in the light of the defendant's formal position on some issues relating to Ms Mundine. In answer to interrogatories, Mr Brown denied that, at the time of publication of the article, he intended to convey about Ms Mundine that she was incompetent as a mental health worker. He intended to convey no imputations at all. Moreover, both Mr Brown and the newspaper did not consider whether any readers of the article might understand it to mean that Ms Mundine was incompetent. There is an obvious tension between the defendants' answers to these questions and an assertion by the same defendants that they somehow published the matter complained of and the defamatory imputation found by the jury pursuant to some duty or special interest that they had with respect to the readers of the Daily Examiner.

72 I consider that the defendants had neither a duty to, nor an interest in, publishing the matter complained of in any circumstances. The subject matter of the publication was of general interest and a local newspaper has an uncontroversial interest in publishing material on local issues. However, as is well known, a publication in a newspaper is not the subject of qualified privilege merely because it gives the public information concerning a matter in respect of which the public is interested. Something more is needed to constitute either a duty or an interest on the part of the newspaper to communicate the information: see Morosi at 778. To establish its claim of privilege the newspaper must satisfy me that it has a duty or interest to publish the article. I can see no occasion to establish or to recognise such a duty or interest: see Morosi at 792. The important role in society identified by the defendants in the present case as some basis for supporting the existence of the interest for which they contend was recognised in Morosi. However, the Court there emphasised that the role did not call for an unrestricted licence to defame people on a matter of public interest.

73 Much the same theme was apparent in Lange. The Court there stressed that if a publication is made to a large audience, as here, a claim for qualified privilege at common law is rejected unless, exceptionally, the members of the audience have an interest in knowing the truth. In addition the Court said that a test devised for situations where usually one person receives the publication is unlikely to be appropriate when the publication is to tens of thousands of readers. I can see no basis in all of the circumstances to depart from that approach in this case.

"The reciprocal interest of the recipients"

74 Whether the recipients of a defamatory publication have an interest in receiving it is to be determined not by whether the recipients have an interest in the specific communication, but by whether they have an interest in receiving information of that kind: Megna v Marshall at [65]; Howe & McColough v Lees [1910] HCA 67; (1910) 11 CLR 361; Bennette v Cohen at [207].

75 In a somewhat revealing submission, the newspaper submitted that the evidence established that the only people to whom the matter complained of was published were the two authors of the UNSW report, fellow workers inside the organisations providing services to Aboriginals who have got the interests of the organisations at heart and people who had worked with or who had been clients of Ms Mundine in her role as the Aboriginal mental health worker at the Bulgarr Ngaru Aboriginal Medical Service. Based upon an acceptance, contrary to my earlier finding, that these were the only relevant recipients of the publication, the newspaper made the following submission:

"33. Given the nature of these recipients, it is self evident that each of those persons had an interest in being informed about inadequacies in Aboriginal service delivery to Aboriginals in the Clarence Valley region.

76 This last submission is not all that easy to accommodate to the submissions previously made by the defendants. It appears on its face to be at odds with their earlier submission on the preliminary issue, to the extent that it suggests that anyone at all in the Clarence Valley could have identified Ms Mundine from the article. It does seem to suggest that anyone at all in the Clarence Valley would have had an interest in receiving information on the inadequacies in Aboriginal service delivery to Aboriginals in the Clarence Valley region and related topics.

77 A key to understanding this submission is to be found in the judgment of Smithers J in Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 at 542, on which the defendants relied, in these terms:

"… It cannot be doubted that the treatment of Aborigines by Australian authorities and white Australians is a matter of public interest, not in the sense of mere interest such as the result of a football match or the Melbourne Cup, but as a matter in respect of which all governments and all Australians have a continuing responsibility to examine developments and policies and in relation to which the formation of an informed public opinion is of importance for the formation of official policy and the establishment of standards of private conduct. It is not too much to say that it is a subject which touches the conscience of all. The extension of measurable treatment towards Aborigines is inevitably a matter of public concern, indeed, a matter of international concern, in connection with which Australia must cope with the interest, sometimes critical, of international bodies. The fact that Granada displayed so much energy in researching and publishing the film that "shocked Britain" is but a symptom of that wider interest abroad. To cope with this it is essential that Australians generally should be as accurately and as fully as possible informed of the conduct of governments, business men and others in Australia in relation to the Aborigines. The displacement and resettlement of a body of Aborigines from a reserve and the destruction, temporarily at least, of the vegetation and wild life thereon, must constitute a subject of public interest in the narrowest interpretation of that term. Accordingly, any publication genuinely for the purpose of satisfying the public need for information on a subject of that kind is a privileged publication."

78 The defendants contended that these remarks were apposite in the context of an assessment of the interest of the recipients in this case in the context of a defence of qualified privilege. They made the following further submission about what Smithers J had said:

Comalco

79 However, the fact that a particular topic may be a matter of public interest does not mean that the publisher and the recipient of the publication share a common interest in that topic. The reciprocal interest in the recipients receiving the information is not co-extensive with, and is not automatically established by proof of, the public interest in the topic or of the topic being a matter of public interest. The uncontroversial concession made by Ms Mundine that the subject matter of the article was a matter of public interest is not to the point. Even though at a level of generality it can be said that the population of the Clarence Valley might hopefully have been expected to be interested in the provision of services to members of the Aboriginal community by the Aboriginal Medical Service, every member of that community did not have a reciprocal interest in receiving the information published to them by the defendants. The defendants' submissions confuse the question of public interest and the "special and reciprocal interest" necessary for an occasion of qualified privilege.

Conclusions on the first question

104 The relevant evidence in Ms Mundine's case included the following. Ms Mundine said that before she read the article she was unaware of any dissatisfaction on Mr Brown's part about her work performance at the Aboriginal Medical Service. She gave the following evidence:

"Q. And how soon after you bought it did you realise what was on the front page?
A. When I sat in the car.

Q. Yes, so was your car somewhere near the newsagent?
A. Yeah, parked out the front of the newsagent.

Q. So you sat in your car?
A. Yes.

Q. And what happened?
A. And I read it.

Q. All of it?
A. Yes. I got upset.

Q. What reaction did you have to reading it?
A. I felt upset. I felt - I felt distressed. I felt - I felt very emotional and angry.

Q. Why?
A. Because I could see that it was aimed at me. I could see it was a very public attack aimed at me.

*****

Q. -when you read the article in the car yourself?
A. Yes.

Q. You have told the Court you were upset about that?
A. Yeah.

105 Ms Mundine referred to the effect she thought the article might have upon her ability to do her job. She said, "[i]t takes years to build up a rapport with clients and I believe that one article, it can destroy it. It took away my confidence. I mean, it's hard to build that rapport again with clients because, do they believe it?" She worried that people who read the article might think that what Mr Brown was saying about her was true. She also gave the following evidence:

"Q. Over the whole of that time to now, from the time of this publication in August 2008 until you are sitting here today, what has been the effect on you?
A. It has really affected me, I feel a lot of pain, I feel a lot of embarrassment, I feel intimidated by the article because I am scared to go out because I might run into Avery Brown who could start doing a personal attack on me, I don't know. I feel very intimidated by him.

Q. Has it had any effect on your behaviour in terms of things you choose to do or not to do?
A. Umm, yes.

106 Ms Mundine gave extensive evidence about her conversations with work colleagues and others at work concerning their views on the article. Many of them said that they thought Mr Brown was blaming her for the problems he described with the Aboriginal Medical Service. Some of that evidence was as follows:

"Q. Did any of those four people that you have mentioned say anything that indicated to you that they read the article?
A. Yes.

Q. How many of them said something that indicated that to you?
A. Four.

Q. All of them?
A. Yes.

Q. Do you remember now who spoke first?
A. It was Lisa. Professor Lisa Jackson spoke first.

Q. What did she say?
A. She said, "Why is he, why he's blaming this on you?" she said. "This is terrible," she said. "I would like a copy of that paper and I want to write a letter to the editor myself," she said.

Q. Did anyone else there say something?
A. Yeah. Margaret Scott said: “Why is he blaming you, Lana? You're not the only worker here in this service. Compared to mainstream mental health they have many positions up there and they're all filled by specialist workers in those positions and you are only one worker here."

Q. Did either of the others there, Michelle or Tania, say anything?
A. Yes. Yes.

107 Scott Monaghan also gave evidence. He was the chief executive officer of the Baryulgil Aboriginal Medical Service. He said this:

"Q. Since the time of the article on 18 August 2008, and I mean going back to that time, did you observe any change in Ms Mundine's behaviour?
A. Yes, resulting from that article, she became reluctant to attend other community forums within the Clarence Valley and felt - or she was reluctant to attend community functions as well.

108 Mr Monaghan also gave evidence that members of the Board of the Aboriginal Medical Service questioned him after publication of the article about Ms Mundine's competence. That evidence was as follows:

"Q. Did any members of the board get in touch with you about the article?
A. During the course of the day I did receive calls from a number of the board members in regards to the article, and one particular board member, but I am not too sure, I can't recall which one, actually questioned qualification, actually questioned service delivery for that particular program as a response from the article.

Q. When you say "that particular program"?
A. Mental health.

Q. Was anyone's name mentioned?
A. Lana Mundine.

109 Ms Mundine was never given an apology.

110 Ms Mundine emphasised that the Grafton Domestic Violence Committee flyer for the forum did not mention mental health. Many of the allegations in the article were false. The newspaper could and should have done proper research before publishing the article. The article was a public attack disseminated to the whole of the Clarence Valley and no one came to ask Ms Mundine about any of what it said before it was published. Ms Mundine said that it was entirely unexpected by her and took her by surprise.

111 The defendants submitted that Ms Mundine's evidence as to hurt feelings was "minimal". Further, she did not call any evidence to support her own account as to hurt to her feelings. The defendants said it was surprising that Ms Mundine did not call her daughter, who was the first person she spoke to after she read the article. There was no evidence that anyone thought less of Ms Mundine as a result of what they read. There was said to be "significant delay" in commencing the proceedings, which was said to be indicative of a lack of concern about the publication. Ms Mundine's work performance arguably improved after the publication.

112 The defendants also submitted that the article was published to a limited audience of "100 at most". This is a reconstruction of the earlier submission that the "audience" was limited to those people who identified Ms Mundine. There is no evidence at all that an audience fitting this qualification was limited to 100 people. There was a readership of over 10,000 and no material upon which to base a submission to this effect.

113 The defendants submitted that any damages awarded should be very modest.

Consideration

114 In my opinion the defamation of Ms Mundine was serious. My reasons for forming that view are as follows.

115 It is true that the evidence does not extend to a raft of witnesses informing the Court in solemn tones that since the publication of the article they no longer associate with Ms Mundine or that they have removed her from their cocktail party and charity ball guest lists. This is hardly surprising given the particular circumstances of this case. Ms Mundine grew up in an Aboriginal community not far from Grafton. She still has family there. Her work is centred in a large country town with a significant indigenous population. Ms Mundine's social and working life is closely connected with that community. I am content to infer that she was at all times a respected member of the community. She is an Aboriginal elder and a person sufficiently well regarded to be associated as a claimant with land title claims. I suspect that those who were well placed to speak on Ms Mundine's behalf would have been less comfortable with courtroom testimonials than friends and associates of many other plaintiffs in defamation proceedings. The absence of evidence from such people does not strike me as either surprising or significant. I am certainly not prepared to assume that the absence of witnesses to give evidence about her and to attest to her reaction to the article is because there are none.

116 Ms Mundine's qualifications are in evidence. I have already referred to some of these. She presented as an obviously intelligent, articulate and dedicated woman. Her current role as an Aboriginal mental health worker is one that she has performed for some time. The evidence includes a series of photographs depicting Ms Mundine performing her work, including with inmates at a male correctional facility. Her role is undoubtedly one that carries with it a great deal of responsibility and attracts corresponding attention and respect from members of the community. It is an important position to hold and one that obviously brings Ms Mundine into regular contact with people in the Clarence Valley in often distressing and difficult circumstances. I have no doubt from the way that she presented to me that those who know her and observe her work hold Ms Mundine in high regard. In my observation, Ms Mundine's very identity and sense of self was to a considerable degree a function of the work she performed. A suggestion that she was incompetent would in those circumstances constitute a very painful blow to her pride and self-esteem. Ms Mundine has been injured in her reputation to a considerable degree.

117 I accept without reservation Ms Mundine's evidence that she felt distressed, upset, emotional and angry, and that she also felt insulted, humiliated and embarrassed. She described being devastated and expressed fear for her future as an effective and efficient mental health worker. Moreover, Ms Mundine felt degraded as an Aboriginal health professional. Her colleagues were also in no doubt that the article was directed at her and their confirmation of that recognition could only have served to increase her pain. Their rhetorical concern about why Ms Mundine was being singled out or blamed for the perceived inadequacies of the Aboriginal Medical Service must have exacerbated her distress.

118 The newspaper did not know when it published the article that Ms Mundine was the only Aboriginal person working for an Aboriginal mental health service in the Clarence Valley area. It did not take any steps before publication to determine whether or not it was true that Ms Mundine was incompetent in that role. The newspaper said that Ms Mundine was unknown to it before publication. In contrast, Mr Brown well knew Ms Mundine and knew her to be a mental health worker with the Aboriginal Medical Service. Mr Brown knew her duties to be that of a mental health counsellor on a referral basis and in the field, organising workshops, forums and meetings, helping in cases of emergency and providing specialised help for indigenous needs. However, at the date of publication Mr Brown had no information about Ms Mundine's performance of her duties as a mental health worker. Alike with the newspaper, however, Mr Brown took no steps before publication to determine whether or not it was true that Ms Mundine was incompetent in that role.

119 Mr Brown did say, however, that he spoke to Mr Monaghan before writing the article and abided by Mr Monaghan's request that Mr Brown not name anyone from the Aboriginal Medical Service in his article. Mr Brown contended that his having done so was a matter favourable to him on the question of damages.

120 The following sections of the Act are relevant:

" 34 Damages to bear rational relationship to harm

In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

35 Damages for non-economic loss limited

(1) Unless the court orders otherwise under subsection (2), the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250,000 or any other amount adjusted in accordance with this section from time to time (the "maximum damages amount") that is applicable at the time damages are awarded.

(2) A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.

(3)…

38 Factors in mitigation of damages

(a) the defendant has made an apology to the plaintiff about the publication of the defamatory matter, or

(b) the defendant has published a correction of the defamatory matter, or

(c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter, or

(d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter, or

121 The defendants continued to assert that the amount of Ms Mundine's damages had to be related to the harm that she suffered, taking into account the number of people who identified her. This submission was once again tied to the notion that the number of people in that group or class that identified Ms Mundine was small, so that the harm was correspondingly small. In my opinion there are at least two problems with that submission. The first is the problem to which I have already referred in another context, that the defendants have not been able to give content to the proposition that the group or class was small. The size of the group or class that identified Ms Mundine from the article has not been established and I am neither permitted nor prepared to speculate about it. It is unnecessary to revisit that reasoning any further.

122 However, secondly, the number of people to whom the defamation was published as a factor of significance at all must yield to the particular circumstances of the case. In this case those circumstances include the fact that even though Ms Mundine's reputation may not have been well known beyond the Clarence Valley and the community she serviced, it was no less valuable and important to her for that. On one view, the limited number of people who thought well of Ms Mundine before the publication may well have rendered her public profile and her reputation all the more vulnerable to destruction. She was not the beneficiary of such fame or notoriety of the type that could survive an attack, because it was unable to damage or dissipate the loyalties of some great number of supporters. In short, I do not consider that what happened to Ms Mundine in the relatively restricted confines of the Clarence Valley meant that she did not suffer severe and continuing alarm and distress and loss of self-esteem in the terms that she described. As a matter of degree, her continued association with and close proximity to those who read the article about her suggests that this defamation compares unfavourably with one published, for example, to a far flung and impersonal group or class of people with whom she might never or only rarely come into direct contact.

123 At another level, the extent to which Ms Mundine's work colleagues would appear to have felt that there was a need to support her may also be a direct reflection of the extent to which she was hurt in fact. The visiting professor from the University of New South Wales apparently felt the need to offer to write to the newspaper about the article. It is not as if those who read it were untroubled by it as a piece of journalism that could easily be ignored. In my opinion, that is contextual support for the evidence given by Ms Mundine about how the publication affected her.

124 Ms Mundine also claims aggravated damages. In Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176 at 188, Mahoney A-CJ said this:

"It is not in contest that what the defendants' did warranted the award of aggravated damages. The principles relevant to the assessment of aggravated damages have a deceptive simplicity. It has been said that, in awarding aggravated damages, the court remains restricted to compensating the plaintiff for the loss actually suffered by him as the result of the defamation but, in assessing those damages, the court may adopt the highest level of damages open as compensatory damages."

125 At 193 his Honour continued, saying, "[i]n some cases, a person's reputation is, in a relevant sense, his whole life". He added at 195, "[i]n my opinion, the law should place a high value upon reputation and in particular upon the reputation of those whose work and life depend upon their honesty, integrity and judgment."

126 In State of New South Wales v Riley [2003] NSWCA 208; (2002-2003) 57 NSWLR 496 at [130] – [133], Hodgson JA said this about aggravated damages:

"[130] If, in addition to ordinary compensatory damages for injury to feelings, aggravated damages are to be awarded, then plainly it is important to avoid double counting; and the question arises, what can the additional aggravated damages be compensation for when injury to feelings have already been included in ordinary compensatory damages?

[131] In my opinion, the only principled explanation must be along the following lines. It is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt damages neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified.

Cassell & Co. Ltd. v. Broome

Damages for any tort are or ought to be fixed at a sum which will compensate the plaintiff, so far as money can do it, for all the injury which he has suffered. Where the injury is material and has been ascertained it is generally possible to assess damages with some precision. But that is not so where he has been caused mental distress or when his reputation has been attacked - where, to use the traditional phrase, he has been held up to hatred, ridicule or contempt. Not only is it impossible to ascertain how far other people's minds have been affected, it is almost impossible to equate the damage to a sum of money. Any one person trying to fix a sum as compensation will probably find in his mind a wide bracket within which any sum could be regarded by him as not unreasonable - and different people will come to different conclusions. So in the end there will probably be a wide gap between the sum which on an objective view could be regarded as the least and the sum which could be regarded as the most to which the plaintiff is entitled as compensation.

It has long been recognised that in determining what sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation.

127 In my opinion, Ms Mundine's hurt to her feelings was not caused by wrongdoing on the defendants' part that went beyond ordinary human fallibility. I do not consider that what the defendants did in publishing the article can be described as serious misconduct. In order that conduct of a defendant after publication should attract an award of aggravated damages, a plaintiff must show that it was lacking in bona fides, was improper or unjustifiable: see Herald & Weekly Times Ltd v McGregor [1928] HCA 36; (1928) 41 CLR 254; Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497. If I have regard to the conduct of the defendants it does not seem to me that they have behaved in a high-handed, insulting or oppressive manner in committing the tort or that their conduct at the trial has aggravated the injury by what they said or did there. To the extent that I am entitled to have regard to the finding, I note that the jury expressly found that the defendants were not motivated by malice.

128 I assess Ms Mundine's damages in the sum of $60,000.

Orders

129 I was asked at the conclusion of the hearing to defer making any orders as to costs until after the parties had had an opportunity to consider my reasons for judgment. This is particularly so in light of the fact that the costs of the second defendant, which I found had not published the matter complained of, and which ceased to take any further part in the proceedings, are currently reserved.

130 Accordingly, I will make the following orders:

1. Verdict for the plaintiff for $60,000.

2. I will hear the parties on the question of costs.

3. Direct that the exhibits be returned after 28 days.

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Citations

Mundine v Brown (No 6) [2010] NSWSC 1285

Most Recent Citation

Carey v Nationwide News Pty Ltd (ACN 008 438 828) [2014] NSWDC 73

Cases Citing This Decision

5

Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195

Holmes a Court v Papaconstuntinos [2011] NSWCA 59

McMahon v John Fairfax Publications Pty Ltd (No 7) [2013] NSWSC 933

Cases Cited

29

Statutory Material Cited

1

Mundine v Brown [2010] NSWSC 468

Mundine v Brown (No 2) [2010] NSWSC 514

Mundine v Brown (No 3) [2010] NSWSC 515

CITATION:	Mundine v Brown (No 6) [2010] NSWSC 1285
HEARING DATE(S):	10 May - 1 June 2010, 6 August 2010
JUDGMENT DATE :	5 November 2010
JUDGMENT OF:	Harrison J
DECISION:	1. Verdict for the plaintiff for $60,000. 2. I will hear the parties on the question of costs. 3. Direct that the exhibits be returned after 28 days.
CATCHWORDS:	DEFAMATION – defence of common law qualified privilege – where matter complained of published in newspaper circulating in Clarence Valley – where plaintiff not named in article – whether publication to entire readership of paper or only those persons who identified the plaintiff from extrinsic facts – held publication to all recipients – defence of qualified privilege rejected – DAMAGES – hurt to feelings and loss of reputation – plaintiff employed as Aboriginal mental health worker – defamatory imputation that she was incompetent as such – where plaintiff the only Aboriginal mental health worker in Clarence Valley – defamation substantial – plaintiff awarded $60,000 – no aggravated damages
LEGISLATION CITED:	Defamation Act 2005
CATEGORY:	Principal judgment
CASES CITED:	Aktas v Westpac Banking Corporation Limited [2010] HCA 25 Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 Bashford v Information Australia Pty Ltd [2004] HCA 5; (2004) 218 CLR 366 Bennette v Cohen [2009] NSWCA 60 Carson v John Fairfax and Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 Cassell & Co Ltd v Broome [1972] AC 1027 Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176 Goyan v Motyka [2008] NSWCA 28 Herald & Weekly Times Ltd v McGregor [1928] HCA 36; (1928) 41 CLR 254 Howe & McColough v Lees [1910] HCA 67; (1910) 11 CLR 361 Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 Megna v Marshall [2010] NSWSC 686 Moit v Bristow [2005] NSWCA 322 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 Mundine v Brown [2010] NSWSC 468 Mundine v Brown (No 2) [2010] NSWSC 514 Mundine v Brown (No 3) [2010] NSWSC 515 Mundine v Brown (No 4) [2010] NSWSC 516 Mundine v Brown (No 5) [2010] NSWSC 517 Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 Smith's Newspapers Ltd v Becker [1932] HCA 39; (1932) 47 CLR 279 State of New South Wales v Riley [2003] NSWCA 208; (2002-2003) 57 NSWLR 496 Stephens v West Australian Newspapers [1994] HCA 45; (1994) 182 CLR 211 Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497
PARTIES:	Lana Mundine (Plaintiff) Avery Brown (First Defendant) APN News and Media Limited (Second Defendant) Daily Examiner Pty Ltd (Third Defendant)
FILE NUMBER(S):	SC 2009/296431
COUNSEL:	T Molomby SC with R K M Rasmussen (Plaintiff) P M Sibtain (First Defendant) A T S Dawson (Second and Third Defendants)
SOLICITORS:	Slater & Gordon (Plaintiff) Holding Redlich (First Defendant) Banki Haddock Fiora (Second and Third Defendants)